Certified Final Objection No. 114 of the

Joint Legislative Committee on Administrative Rules

At its meeting on February 16, 2001, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2000-185 containing rules of the Department of Environmental Services relative to public grants for landfill and incinerator closure. The Department responded by letter dated March 5, 2001.

At its meeting on May 4, 2001, the Joint Legislative Committee on Administrative Rules voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 2000-185. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:13, VI:

            After a final objection by the committee to a provision of a rule is filed with the director under subparagraph V(d), the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.

            The following summarizes the bases for the Committee’s final objection:

Env-Wm 3308.02

            The Committee objected that Env-Wm 3008.02 is, pursuant to Committee Rule 401.01(c), beyond the authority of the Department.

            Pursuant to RSA 149-M:43, the state shall pay 20% of eligible costs resulting from the closure of municipal landfills and municipal incinerators. The term "eligible costs" is defined by RSA 149-M:42, III, as follows:

            "Eligible costs" means the costs of the closure of a solid waste landfill

            or municipal incinerator eligible to be covered by the grant established by this

            subdivision, and shall include costs of hydrogeological and engineering investi-

            gation and design, capital construction of closure elements required by rules

            adopted pursuant to RSA 149-M:7, and construction supervision. Eligible costs

            shall exclude land acquisition, except for land which is necessary to the physical

            elements of closure of either an unlined landfill or a municipal incinerator, and

            any administrative, legal, and fiscal costs related to the closure.

            Under Env-Wm 3008.02, the Department would reduce the amount of a grant awarded for the closure of a municipal landfill or incinerator if the municipality receives funds from a third party relating to the closure. The Committee determined that none of the relevant statutes (RSA 149-M:41 through RSA 149-M:50) indicates that the eligible costs shall be reduced to offset the receipt of third party funds, such as money given as a gift to the municipality. In light of this determination, and given the state’s obligation to pay 20% of the statutorily specified "eligible costs," the Committee concluded that there is no authority for such a reduction in grant awards.